Opinion
February 10, 1971
Cross appeals (1) from an order of the Supreme Court at Special Term, entered June 15, 1970 in Ulster County, which granted in part a motion by plaintiff for summary judgment and from the judgment entered thereon on June 23, 1970, and (2) from an order entered therein on September 22, 1970 which adhered to the original determination and denied the balance of plaintiff's motion for summary judgment. Defendants operate a large chicken farm in Ulster County and for a number of years purchased feed and equipment from plaintiff. In 1965, defendant Aaron Levine, hereinafter referred to as Levine, allegedly purchased from plaintiff certain automatic poultry equipment manufactured by Big Dutchman Automatic Poultry Feeder Co. In the complaint setting forth six causes of action, the first three are for alleged defaults on promissory notes, the first two of which were executed by Levine and the third by him and his wife, defendant Eve Levine. The fourth and fifth are for the balances allegedly due under retail installment contracts arising out of the sale of equipment by plaintiff to Levine, including part of that manufactured by Big Dutchman. The sixth is for the agreed price and reasonable value of other poultry supplies and feed sold on open account by plaintiff to Levine. In addition to general denials, the answer contained affirmative defenses and counterclaims based on breach of express warranty, breach of implied warranty and negligent repairs, it being alleged that the equipment purchased from Accord in 1965, and thereafter repaired, did not operate properly and caused damages to defendants. The promissory note, sought to be collected in the first cause, stated that it was for the transfer of an open account and that the note was to remain in possession of plaintiff. Levine does not deny the amount due, except in a general denial in the answer, but alleges conclusionally by affidavit that the note was given and indorsed with the understanding that it was not due until the defective equipment was repaired. Since the express obligation to pay on the date specified cannot be contradicted by parol evidence of a condition permitting subsequent termination ( Solomon v. Van De Maele, 21 A.D.2d 396, 399) and since the parol evidence rule is applied on a summary judgment motion as upon trial ( West End Fed. Sav. Loan Assn. v. Di Boise, 19 A.D.2d 476; Ford v. Hahn, 269 App. Div. 436), there is presented no question of fact as to Levine's liability on this note. The note in the second cause of action recited: "Disputed Bills — to clear ledger card" and Levine alleges that it evinces that "the note was simply given to clear the Accord ledger card until such time as the equipment was repaired." Not only is this explanation inadequate in that there has been no evidentiary showing of it nor other factual denial of liability (cf. Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 63), but it cannot vary the note's express statement in two places that it was due on December 20, 1968. Regarding the notation "Renewable with outstanding note on a 2 year pay out B" set forth on the instrument on which the third cause is based, defendants contend that it shows the intent of the parties that the notes were to be renewed for a two-year period from December 1, 1968, the stated due date, and, hence, an action would not lie earlier than December 1, 1970, or after commencement of the action. The record contains no indication that the note was in fact renewed by defendants and there is no question of fact as to their liability. The sixth cause of action, for a balance on an account for poultry supplies and feed sold and delivered (cf. O'Brien Bros. Slate Co. v. Chant, 8 A.D.2d 924; Barron v. Lance, 118 App. Div. 914; 4 Carmody-Wait 2d, New York Practice, § 29:234), was established adequately by the affidavit of plaintiff's manager which swears to the accuracy of the annexed statement of account, the showing of supporting documents to Levine, the rendering of statements and their retention without objection (cf. Georgia-Pacific Corp. v. Fort Pit Supply, 34 A.D.2d 742). Except for the general denial in the answer, Levine does not deny that he owes money on the account but asserts that the amount due is very much disputed. Thus, in sheltering himself behind such a generality, he has failed to show facts revealing a plausible ground of defense of a substantial character ( Dwan v. Massarene, 199 App. Div. 872, 880). Under CPLR 3212 (subd. [e]), the court, in the proper exercise of discretion, may enter partial summary judgment although there exist remaining counterclaims to be tried which are in excess of the claims upon which summary judgment is granted, unless the counterclaims are so inseparable from plaintiff's cause of action that entry of judgment should be withheld ( Dalminter, Inc. v. Dalmine, S.p.A., 29 A.D.2d 852, 853, affd. 23 N.Y.2d 653). The causes of action, for which Special Term granted judgment, were based on the notes and the account and are distinct from the counterclaims based on the alleged faulty equipment and repairs. The fourth and fifth causes, for amounts due on the installment contracts, arose out of the sale of that equipment, the relation between which has been conceded in plaintiff's brief, and, therefore, Special Term did not err in withholding summary judgment as to said causes. There has been no showing such as to warrant questioning plaintiff's financial responsibility and, in view of the existence of the fourth and fifth causes of action, the rule of damages regarding the first two counterclaims and the answer's absence of an amount of damages claimed for negligent repairs, we deem it unnecessary and inadvisable to impose conditions in connection with the granting of the partial summary judgment (cf. Pease Elliman v. 926 Park Ave. Corp., 23 A.D.2d 361, 363). Judgment and orders affirmed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.